[Cite as Steese v. Canton Regency, 2022-Ohio-4711.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RICHARD STEESE, ON HIS OWN JUDGES: BEHALF AND/OR BY AND THROUGH Hon. W. Scott Gwin, P.J. DEBORAH FLOWERS, POWER OF Hon. William B. Hoffman, J. ATTORNEY Hon. John W. Wise, J.
Plaintiff-Appellant
-vs- Case No. 2022CA00038 CANTON REGENCY, ET AL.,
Defendants-Appellees OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2016CV02671
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 22, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
STACI L. ROTH BRET PERRY SEAN R. STEWARD CHRISTOPHER MARS Schulman Roth & Associates, Co., LPA Bonezzi Switzer Polito & Hupp, Co., LPA 235 Third Street, S.W. 1300 East 9th Street – Suite #1950 Canton, Ohio 44702 Cleveland, Ohio 44114 Stark County, Case No. 2022CA00038 2
Hoffman, J. {¶1} Plaintiffs-appellants Richard Steese, et al. appeal the March 7, 2022
Judgment Entry entered by the Stark County Court of Common Pleas, which granted
defendants-appellees Canton Regency Canton Regency and Capital Senior Living ILM-
B, Inc.’s motion to stay and enforce arbitration.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 1, 2017, Appellant Richard Steese was admitted to
Appellees’ assisted living facility. As part of the admissions process, Appellant Deborah
Flowers, Steese’s daughter and power of attorney, executed a Residence and Services
Agreement, which included a separate arbitration agreement.
{¶3} On June 25, 2019, Steese jumped/fell out a second-story window at the
facility, sustaining serious and permanent injuries. Steese suffers from Alzheimer’s
Disease. At the time of the incident, Steese was experiencing hallucinations and
delusions which told him to jump out of the window. Steese informed two different
employees at Appellees’ facility of his intention to jump. Steese was able to open a
window and did, in fact, jump/fall therefrom.
{¶4} On December 14, 2020, Steese, on his own behalf and/or by and through
Flowers, filed a complaint against Appellees, alleging negligence, medical malpractice,
and violations of R.C. 3721.13, and seeking punitive and compensatory damages.
Appellants also filed a motion for enlargement of time to file affidavit of merit pursuant to
Civ. R. 10(D)(2), which the trial court granted via Judgment Entry filed December 15,
2020. On December 22, 2020, Appellees filed a motion to stay discovery until Appellants
complied with Civ. R. 10(D)(2) and a motion for leave to file their answer after Appellees Stark County, Case No. 2022CA00038 3
produced an affidavit of merit. On January 4, 2021, Appellants filed an affidavit of merit.
Appellees filed an amended answer with jury demand on January 14, 2021.
{¶5} Also, on January 14, 2021, the parties filed a joint motion to stay case for
purposes of private mediation, which the trial court granted on the same day. In a motion
filed May 6, 2021, Appellees asked the trial to vacate the order to stay and to reactivate
the case to the active docket. Appellees advised the trial court the parties had attempted
to mediate the case on April 16, 2021, but such was unsuccessful. On June 2, 2021, the
trial court issued a judgment entry assigning relevant dates in the matter. On July 1,
2021, counsel for the parties met pursuant to Ohio Civ. R. 26(F). Appellees filed a
proposed joint discovery plan on July 9, 2021.
{¶6} On January 19, 2022, Appellees filed a motion to stay and enforce
arbitration agreement. Appellant filed a memorandum contra on February 7, 2022.
Appellees filed a reply to Appellants’ memorandum contra on February 25, 2022. Via
Judgment Entry filed March 7, 2022, the trial court stayed the matter and ordered the
parties to binding arbitration.
{¶7} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
GRANTED DEFENDANT’S MOTION TO STAY THE CASE AND
ENFORCE THE ARBITRATION CLAUSE.
II. THE TRIAL COURT WAS IN ERROR WHEN IT FAILED TO FIND
THE ARBITRATION CLAUSE IN QUESTION TO BE UNCONSCIONABLE. Stark County, Case No. 2022CA00038 4
III. THE TRIAL COURT WAS IN ERROR WHEN IT FAILED TO FIND
THAT THE ARBITRATION CLAUSE VIOLATES MEDICARE
REGULATIONS.
I
{¶8} Like any other contractual right, the right to arbitrate may be waived. Murtha
v. Ravines of McNaughton Condominium Assn., 10th Dist. Franklin No. 09AP–709, 2010–
Ohio–1325, ¶ 20. (Citation omitted). Due to Ohio's strong policy favoring arbitration, the
party asserting a waiver has the burden of proving it. Tinker v. Oldaker, 10th Dist. Franklin
No. 03AP–671, 2004–Ohio–3316, ¶ 18. (Citation omitted). “A party asserting waiver must
prove that the waiving party knew of the existing right to arbitrate and, based on the totality
of the circumstances, acted inconsistently with that known right.” Murtha, supra at ¶ 21.
(Citation omitted).
{¶9} In determining whether the totality of the circumstances supports a finding
of waiver, a court may consider such factors as:
1) any delay in the requesting party's demand to arbitrate * * *;
2) the extent of the requesting party's participation in the litigation
prior to its filing a motion to stay the judicial proceeding, including a
determination of the status of discovery, dispositive motions, and the trial
date; Stark County, Case No. 2022CA00038 5
3) whether the requesting party invoked the jurisdiction of the court
by filing a counterclaim or third-party complaint without asking for a stay of
the proceedings; and
4) whether the non-requesting party has been prejudiced by the
requesting party's inconsistent acts.
{¶10} Fries v. Greg G. Wright & Sons, L.L.C., 1st Dist. Hamilton No. C-160818,
2018-Ohio-3785, ¶ 28. (Citations omitted).
{¶11} “A waiver of the contractual right to arbitrate may arise by implication from
a party's active participation in prosecuting or defending against a claim in litigation or
from any acts that are otherwise inconsistent with the party's right to proceed with
arbitration.” Id. at ¶ 26. (Citation omitted).
{¶12} “[T]he question of waiver is usually a fact-driven issue and an appellate
court will not reverse the trial court's decision absent a showing of an abuse of discretion.”
Tinker, supra at ¶ 20. (Citation and internal quotations omitted). The phrase “abuse of
discretion” implies the trial court's attitude is arbitrary, unreasonable or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶13} We find Appellees knew of the existing right to arbitrate and, based on the
totality of the circumstances, acted inconsistently with that known right.
{¶14} As to the first factor, the delay, we note Appellees did not file their motion
to stay until 13 months after Appellants filed their complaint.
{¶15} Appellees suggest “this case has been in active litigation for just over nine
(9) months” as the trial court stayed the matter “for nearly five (5) months to allow the Stark County, Case No. 2022CA00038 6
parties to engage in private mediation.” Brief of Appellees at 9. Appellees cite to a number
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[Cite as Steese v. Canton Regency, 2022-Ohio-4711.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RICHARD STEESE, ON HIS OWN JUDGES: BEHALF AND/OR BY AND THROUGH Hon. W. Scott Gwin, P.J. DEBORAH FLOWERS, POWER OF Hon. William B. Hoffman, J. ATTORNEY Hon. John W. Wise, J.
Plaintiff-Appellant
-vs- Case No. 2022CA00038 CANTON REGENCY, ET AL.,
Defendants-Appellees OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2016CV02671
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 22, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
STACI L. ROTH BRET PERRY SEAN R. STEWARD CHRISTOPHER MARS Schulman Roth & Associates, Co., LPA Bonezzi Switzer Polito & Hupp, Co., LPA 235 Third Street, S.W. 1300 East 9th Street – Suite #1950 Canton, Ohio 44702 Cleveland, Ohio 44114 Stark County, Case No. 2022CA00038 2
Hoffman, J. {¶1} Plaintiffs-appellants Richard Steese, et al. appeal the March 7, 2022
Judgment Entry entered by the Stark County Court of Common Pleas, which granted
defendants-appellees Canton Regency Canton Regency and Capital Senior Living ILM-
B, Inc.’s motion to stay and enforce arbitration.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 1, 2017, Appellant Richard Steese was admitted to
Appellees’ assisted living facility. As part of the admissions process, Appellant Deborah
Flowers, Steese’s daughter and power of attorney, executed a Residence and Services
Agreement, which included a separate arbitration agreement.
{¶3} On June 25, 2019, Steese jumped/fell out a second-story window at the
facility, sustaining serious and permanent injuries. Steese suffers from Alzheimer’s
Disease. At the time of the incident, Steese was experiencing hallucinations and
delusions which told him to jump out of the window. Steese informed two different
employees at Appellees’ facility of his intention to jump. Steese was able to open a
window and did, in fact, jump/fall therefrom.
{¶4} On December 14, 2020, Steese, on his own behalf and/or by and through
Flowers, filed a complaint against Appellees, alleging negligence, medical malpractice,
and violations of R.C. 3721.13, and seeking punitive and compensatory damages.
Appellants also filed a motion for enlargement of time to file affidavit of merit pursuant to
Civ. R. 10(D)(2), which the trial court granted via Judgment Entry filed December 15,
2020. On December 22, 2020, Appellees filed a motion to stay discovery until Appellants
complied with Civ. R. 10(D)(2) and a motion for leave to file their answer after Appellees Stark County, Case No. 2022CA00038 3
produced an affidavit of merit. On January 4, 2021, Appellants filed an affidavit of merit.
Appellees filed an amended answer with jury demand on January 14, 2021.
{¶5} Also, on January 14, 2021, the parties filed a joint motion to stay case for
purposes of private mediation, which the trial court granted on the same day. In a motion
filed May 6, 2021, Appellees asked the trial to vacate the order to stay and to reactivate
the case to the active docket. Appellees advised the trial court the parties had attempted
to mediate the case on April 16, 2021, but such was unsuccessful. On June 2, 2021, the
trial court issued a judgment entry assigning relevant dates in the matter. On July 1,
2021, counsel for the parties met pursuant to Ohio Civ. R. 26(F). Appellees filed a
proposed joint discovery plan on July 9, 2021.
{¶6} On January 19, 2022, Appellees filed a motion to stay and enforce
arbitration agreement. Appellant filed a memorandum contra on February 7, 2022.
Appellees filed a reply to Appellants’ memorandum contra on February 25, 2022. Via
Judgment Entry filed March 7, 2022, the trial court stayed the matter and ordered the
parties to binding arbitration.
{¶7} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
GRANTED DEFENDANT’S MOTION TO STAY THE CASE AND
ENFORCE THE ARBITRATION CLAUSE.
II. THE TRIAL COURT WAS IN ERROR WHEN IT FAILED TO FIND
THE ARBITRATION CLAUSE IN QUESTION TO BE UNCONSCIONABLE. Stark County, Case No. 2022CA00038 4
III. THE TRIAL COURT WAS IN ERROR WHEN IT FAILED TO FIND
THAT THE ARBITRATION CLAUSE VIOLATES MEDICARE
REGULATIONS.
I
{¶8} Like any other contractual right, the right to arbitrate may be waived. Murtha
v. Ravines of McNaughton Condominium Assn., 10th Dist. Franklin No. 09AP–709, 2010–
Ohio–1325, ¶ 20. (Citation omitted). Due to Ohio's strong policy favoring arbitration, the
party asserting a waiver has the burden of proving it. Tinker v. Oldaker, 10th Dist. Franklin
No. 03AP–671, 2004–Ohio–3316, ¶ 18. (Citation omitted). “A party asserting waiver must
prove that the waiving party knew of the existing right to arbitrate and, based on the totality
of the circumstances, acted inconsistently with that known right.” Murtha, supra at ¶ 21.
(Citation omitted).
{¶9} In determining whether the totality of the circumstances supports a finding
of waiver, a court may consider such factors as:
1) any delay in the requesting party's demand to arbitrate * * *;
2) the extent of the requesting party's participation in the litigation
prior to its filing a motion to stay the judicial proceeding, including a
determination of the status of discovery, dispositive motions, and the trial
date; Stark County, Case No. 2022CA00038 5
3) whether the requesting party invoked the jurisdiction of the court
by filing a counterclaim or third-party complaint without asking for a stay of
the proceedings; and
4) whether the non-requesting party has been prejudiced by the
requesting party's inconsistent acts.
{¶10} Fries v. Greg G. Wright & Sons, L.L.C., 1st Dist. Hamilton No. C-160818,
2018-Ohio-3785, ¶ 28. (Citations omitted).
{¶11} “A waiver of the contractual right to arbitrate may arise by implication from
a party's active participation in prosecuting or defending against a claim in litigation or
from any acts that are otherwise inconsistent with the party's right to proceed with
arbitration.” Id. at ¶ 26. (Citation omitted).
{¶12} “[T]he question of waiver is usually a fact-driven issue and an appellate
court will not reverse the trial court's decision absent a showing of an abuse of discretion.”
Tinker, supra at ¶ 20. (Citation and internal quotations omitted). The phrase “abuse of
discretion” implies the trial court's attitude is arbitrary, unreasonable or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶13} We find Appellees knew of the existing right to arbitrate and, based on the
totality of the circumstances, acted inconsistently with that known right.
{¶14} As to the first factor, the delay, we note Appellees did not file their motion
to stay until 13 months after Appellants filed their complaint.
{¶15} Appellees suggest “this case has been in active litigation for just over nine
(9) months” as the trial court stayed the matter “for nearly five (5) months to allow the Stark County, Case No. 2022CA00038 6
parties to engage in private mediation.” Brief of Appellees at 9. Appellees cite to a number
of cases which found delays of three to six months did not establish waiver of a party’s
right to arbitration. See, Milling Away, LLC v. Infinity Retail Environments, Inc., Summit
App. No. 24168, 2008–Ohio–4691 (6 month delay); Mason v. Mason, 5th Dist. Stark No.
2016CA00208, 2017-Ohio-5787 (4 month delay); Donnell v. Parkcliffe Alzheimer's
Community, 6th Dist. Wood No. WD-17-001, 2017-Ohio-7982 (4 month delay); and
Harsco Corp. v. Crane Carrier Co., 122 Ohio App.3d 406, 413 (1997) (3 month delay).
Appellees conclude the delay in the instant matter does not establish their waiver of the
right to arbitration.
{¶16} While we recognize a number of courts have found this general time period
of three to six months insufficient to show waiver, we note other courts have found this
general time period to be sufficient, depending upon the degree of participation in the
litigation during this time period. See, e.g., Chrysler Fin. Servs. Ams., L.L.C. v.
Henderson, 4th Dist. Athens No. 11CA4, 2011-Ohio-6813 (6 month delay). However, we
need not engage in such a determination as the instant matter involves a delay of over
one year. Although there was a delay of approximately four months while the parties
attempted to mediate the case, Appellees waited an additional 9 months after the
unsuccessful mediation before filing their motion to stay. The trial court had re-instated
the case to the active docket and scheduled the jury trial. We find the time during which
the parties engaged in mediation should not be subtracted from the overall delay in
Appellees’ filing their motion to stay.
{¶17} As to the second factor, participation in the litigation, we find Appellees’
participation in the litigation was not passive. At the outset of the litigation, Appellees filed Stark County, Case No. 2022CA00038 7
a motion to stay discovery pending Appellants’ compliance with Civ. R. 10(D)(2). The
filing of an affidavit of merit would be unnecessary if Appellees intended to invoke their
right to arbitration. On January 14, 2021, Appellees filed notice they had propounded
their first set of interrogatories and production of documents on Appellants. Appellees
also filed a notice of jury demand. In addition, also on January 14, 2021, the parties filed
a joint motion to stay for purposes of private mediation. After mediation proved
unsuccessful, Appellees filed a motion to vacate stay and reinstate the case to the trial
court’s active docket on May 6, 2021. The trial court issued a judgment entry, scheduling
the initial pretrial, the final pretrial, and the jury trial on June 2, 2021. We find Appellees’
participation weighs in favor of finding a waiver of their right to arbitration.
{¶18} We find the third factor is inapplicable. There is no evidence Appellees
invoked the trial court’s jurisdiction by filing a counterclaim or third-party complaint. This
factor weighs in favor of Appellees.
{¶19} As to the fourth factor, the evidence establishes Appellants have been
prejudiced by Appellees inconsistent acts. Appellees’ actions resulted in Appellants
having to secure the services of a doctor in order to obtain an affidavit of merit. In addition,
Appellants had to bear the expenses of private mediation. Appellants have also been
prejudiced by the delay caused by Appellees in this matter.
{¶20} Based upon the totality of the circumstances as discussed, supra, we find
Appellees acted inconsistently with their right to arbitration; therefore, have waived such
right.
{¶21} Appellants’ first assignment of error is sustained. Stark County, Case No. 2022CA00038 8
II, III
{¶22} In light of our disposition of Appellants’ first assignment of error, we find
Appellants’ second and third assignments of error are not ripe for review.
{¶23} The judgment of the Stark County Court of Common Pleas is reversed and
the matter remanded for further proceedings consistent with the law and this Opinion.
By: Hoffman, J. Gwin, P.J. and Wise, John, J. concur